Citation Nr: 0300032
Decision Date: 01/02/03 Archive Date: 01/15/03
DOCKET NO. 96-46 224 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Portland, Oregon
THE ISSUE
Entitlement to an increased (compensable) rating for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Giannecchini, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1950
to September 1954, and from October 1957 to December 1979.
This matter comes before the Board of Veterans' Appeals
(Board) from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon.
In a July 1999 decision, the Board denied the veteran's
claims for service connection for arthritis of the first
joint of the right index finger, bilateral hernias, low
back disorder, right wrist disorder, numbness of the right
hand and foot, and a respiratory disorder secondary to
herbicide exposure. The Board also denied entitlement to
a compensable evaluation for seborrheic dermatitis. The
issues with respect to compensable evaluations for left
and right ear hearing loss were remanded to the RO for
additional development. That development has been
completed and those issues are again before the Board.
FINDINGS OF FACT
1. All available information and evidence necessary for
an equitable disposition of the veteran's appeal have been
obtained by the RO.
2. The veteran's pure tone threshold average is less than
34 dB in each ear; his percentage of discrimination is 94
or higher in both ears.
3. The veteran does not have a pure tone threshold of 70
dB or higher at 2000 Hertz.
CONCLUSION OF LAW
The criteria for a compensable evaluation for left ear
hearing loss have not been met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100
(1998); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
During the pendency of the veteran's appeal, the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000), was signed into law. It is
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West Supp. 2001). The liberalizing provisions
of the VCAA are applicable to the issues on appeal. See
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence
of a well-grounded claim, and provide that VA will assist
a claimant in obtaining evidence necessary to substantiate
a claim but is not required to provide assistance to a
claimant if there is no reasonable possibility that such
assistance would aid in substantiating the claim. They
also require VA to notify the claimant and the claimant's
representative, if any, of any information, and any
medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of
which portion, if any, of the evidence is to be provided
by the claimant and which part, if any, VA will attempt to
obtain on behalf of the claimant.
The record reflects that the veteran has been notified of
the requirements for the benefits sought on appeal and the
basis of the RO's decision with respect to his claims.
In the Board's July 1999 remand, it requested that the RO
contact the veteran and have him identify all medical care
providers who had treated him for hearing loss since July
1996. Following notification in September 1999, the
veteran responded to the RO's request a month later,
indicating that he had been treated by civilian doctors in
Columbia (South America), where he was living, but that he
did not know the names of the doctors.
The RO issued a supplemental statement of the case (SSOC)
in April 2001. In the SSOC, the veteran was provided the
regulations governing hearing loss and placed on notice of
what the medical evidence would need to show to
substantiate his claim for a compensable rating for
hearing loss. The veteran has not alleged that there is
any outstanding evidence or information that could be
obtained to substantiate his claims, nor is the Board
aware of such evidence.
In a letter dated in November 2001, the RO informed the
veteran of the VCAA. The letter put the veteran on notice
of what evidence VA was responsible for obtaining and what
evidence he was responsible for obtaining.
VA has thereby met its obligations to notify the veteran
of the evidence needed to substantiate his claims and of
what evidence he is responsible for obtaining. Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
The VCAA requires that VA afford the veteran an
examination when there is competent evidence that a
claimant has a current disability, or persistent or
recurrent symptoms of a disability; there are indications
that the disability may be associated with active service;
and the record is insufficient to decide the claim. 38
U.S.C.A. § 5103A(d). The veteran was afforded a VA
examination in August 2000 to assess his current level of
hearing disability.
There is no reasonable possibility that further assistance
could assist the veteran in substantiating his claims.
The Board will proceed with the veteran's appeal.
Legal Criteria
The veteran has appealed the RO decision assigning an
initial noncompensable evaluation for his right ear
hearing loss. Therefore, consideration must be given
regarding whether the case warrants the assignment of
separate ratings for the disability for separate periods
of time, based on the facts found, a practice known as
"staged" ratings. See Fenderson v. West, 12 Vet. App. 119
(1999).
Disability evaluations are determined by the application
of a schedule of ratings which is based on average
impairment of earning capacity. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1 (2002). Separate diagnostic codes identify
the various disabilities.
During the pendency of the appeal, VA issued new
regulations for evaluating diseases of the ears and other
sense organs, effective June 10, 1999. See 64 Fed. Reg.
25,202 - 25,210 (May 11, 1999). The new regulations were
codified at 38 C.F.R. §§ 4.85-4.87a (2002). In its April
2001 SSOC, the RO cited and considered the new
regulations.
When a law or regulation changes while a case is pending,
the version most favorable to the claimant applies, absent
congressional intent to the contrary. Karnas v.
Derwinski, 1 Vet. App. 308, 312-313 (1991).
VA's General Counsel has held that where a law or
regulation changes during the pendency of a claim, the
Board should first determine whether the revised version
is more favorable to the veteran. In so doing, it may be
necessary for the Board to apply both the old and new
versions of the regulation. If the revised version of the
regulation is more favorable, the retroactive reach of
that regulation under 38 U.S.C.A. § 5110(g) (West 1991),
can be no earlier than the effective date of that change.
The Board must apply only the earlier version of the
regulation for the period prior to the effective date of
the change. VAOPGCPREC 3-2000 (2000).
In reviewing this case, the Board must evaluate the
veteran's service-connected hearing loss under both the
old and current regulations to determine whether the
veteran is entitled to an increased evaluation under
either set of criteria.
The pertinent regulatory amendments regarding evaluations
for hearing impairment did not result in any substantive
changes relevant to this appeal. Essentially, the old and
new regulations for evaluating disability from a hearing
loss disorder are identical. See 64 Fed. Reg. 25,202 (May
11, 1999) (discussing the method of evaluating hearing
loss based on the results of puretone audiometry results
and the results of a controlled speech discrimination
tests, and indicating that there was no proposed change in
this method of evaluation).
Under the new regulations, the title of Table VI was
changed from "Numeric Designations of Hearing Impairment"
(38 C.F.R. § 4.87 (1998)) to "Numeric Designations of
Hearing Impairment Based on Puretone Threshold Average and
Speech Discrimination" (38 C.F.R. § 4.85 (2002)).
Moreover, Table VII reflects that hearing loss is now
rated under a single Code, that of Diagnostic Code 6100,
regardless of the percentage of disability.
The amended regulations added two new provisions for
evaluating veterans with certain patterns of hearing
impairment that cannot always be accurately assessed under
section 4.85 because the speech discrimination test may
not reflect the severity of communicative functioning that
some veterans experience. See 64 Fed. Reg. 25,203 (May
11, 1999). Under 38 C.F.R. § 4.86(a), if puretone
thresholds at each of the specified frequencies (1000,
2000, 3000, and 4000 Hertz) are 55 dB's or more, an
evaluation could be based upon either Table VI or Table
VIa, whichever results in a higher evaluation. Under
section 4.86(b), when a puretone threshold is 30 dB or
less at 1000 Hertz, and is 70 dB or more at 2000 Hertz, an
evaluation could also be based either upon Table VI or
Table VIa, whichever results in a higher evaluation.
To evaluate the degree of disability for service-connected
hearing loss, the rating schedule establishes eleven (11)
auditory acuity levels, designated from level "I", for
essentially normal acuity, through level "XI", for
profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100
(2002). The assignment of disability ratings for hearing
impairment is derived by a mechanical application of the
rating schedule to the numeric designations assigned after
audiometric evaluations are rendered. See Acevedo-Escobar
v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).
Examinations are conducted using the controlled speech
discrimination tests, together with the results of the
puretone audiometry test. The horizontal lines in table
VI, referenced in 38 C.F.R. § 4.85, represent nine
categories of percent of discrimination based upon the
controlled speech discrimination test. The vertical
columns in table VI represent nine categories of decibel
loss based upon the puretone audiometry test. The numeric
designation of impaired efficiency
(I through XI) will be determined for each ear by
intersecting the horizontal row appropriate for the
percentage of discrimination and the vertical column
appropriate to puretone decibel loss; thus, for example,
with a percent of discrimination of 70 and average
puretone decibel loss of 64, the numeric designation is
"V" for one ear. The same procedure will be followed for
the other ear. The numeric designations are then applied
to table VII, also referenced in 38 C.F.R. § 4.85, to
determine the veteran's disability rating.
Factual Background
In a May 1980 rating decision, the veteran was service
connected for left ear hearing loss and awarded a
noncompensable evaluation. He was denied service
connection for right ear hearing loss. He did not appeal
the decision.
In July 1996, the veteran was administered a VA
audiological examination. Pure
Puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
10
50
60
LEFT
10
10
10
35
35
Puretone decibel averages (1000-4000 Hz) were 33 dB for
the right ear and 23 dB for the left ear. Speech
audiometry revealed speech recognition ability of 80
percent for the right ear and 84 percent for the left ear.
In a December 1996 rating decision, the veteran was
granted service connection for right ear hearing loss, and
denied an increased (compensable) rating for left ear
hearing loss. He appealed this decision.
In August 2000, the veteran was administered a VA
audiological examination. Pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
15
50
55
LEFT
5
10
10
50
55
Puretone decibel averages were 33 dB for the right ear and
31 dB for the left ear. Speech audiometry revealed speech
recognition ability of 96 percent for the right ear and 94
percent for the left ear.
Analysis
The veteran's July 1996 VA audiological evaluation
revealed an average puretone threshold hearing level of 23
dB for the left ear, with a speech discrimination score of
84 percent. An average puretone threshold hearing level
of 33 dB with a speech discrimination score of 80 percent
was reported for the right ear. Application of these
scores to table VI results in a designation of "II" for
the left ear and a designation of "III" for the right ear
under DC 6100. When applied to table VII, this results in
a noncompensable (0 percent) evaluation.
The veteran's August 2000 VA audiological evaluation
revealed an average puretone threshold hearing level of 31
dB for the left ear, with a speech discrimination score of
94 percent. An average puretone threshold hearing level
of 33 dB with a speech discrimination score of 96 percent
was reported for the right ear. Application of these
scores to table VI results in a designation of "I" for the
left ear and a designation of "I" for the right ear under
DC 6100. When applied to Table VII, this results in a
noncompensable (0 percent) evaluation.
The Board has also considered section 4.86(a). However,
given that, the evidence does not reflect puretone
thresholds of 55 dB or more at 1000, 2000, 3000, and 4000
Hertz, consideration of Table VIa is not warranted.
Consideration of section 4.86(b) is also not warranted,
given that the evidence does not reflect a simultaneous
puretone threshold of 30 dB or less at 1000 Hertz and a
puretone threshold of 70 dB or more at 2000 Hertz.
The Board has also considered whether the veteran is
entitled to a "staged" rating for his service-connected
right ear hearing disability, as the Court indicated can
be done in this type of case. The currently assigned
noncompensable rating was granted, effective from the date
of service connection. Upon reviewing the longitudinal
record in this case, the Board finds that at no time has
the veteran's disability met the criteria for a
compensable rating.
Under the circumstances described above, the preponderance
of the evidence is against an increased disability rating
for the veteran's bilateral hearing loss.
Additionally, 38 C.F.R. § 3.321(b)(1) provides that, where
the disability picture is so exceptional or unusual that
the normal provisions of the rating schedule would not
adequately compensate the veteran for service-connected
disability, then an extraschedular evaluation will be
assigned. If the question of an extraschedular rating is
raised by the record or by the veteran before the Board,
the correct course of action for the Board is to raise the
issue and remand the matter for decision in the first
instance by the RO. Bagwell v. Brown, 9 Vet. App. 157,
158 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In
the absence of "evidence of 'an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application
of the regular schedular standards' . . . the Board [is]
not required to discuss the possible application of
§ 3.321(b)(1)." Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
Here, the veteran has not raised the issue of an
extraschedular rating. Furthermore, there is no other
evidence that his hearing disability causes marked
interference with employment or necessitates frequent
hospitalization. As a result, the Board finds that
consideration of this matter under the provisions of 38
C.F.R. § 3.321 is not appropriate.
ORDER
Entitlement to an increased (compensable) rating for
bilateral hearing loss is denied.
Mark D. Hindin
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.